3D printing's first copyright complaint goes away, but things are just getting started

More news on the first-ever DMCA threat for violating a copyright in a 3D object -- Ulrich Schwanitz has rescinded his complaint and will release his shape into the public domain today.

Here's a summary for those of you who missed it: last week, Ulrich Schwanitz figured out how to print the "impossible" Penrose Triangle," a well-known optical illusion. He released a video of the shape and challenged others to see how it might have been done. 3D modeller Artur Tchoukanov promptly figured it out, designed a 3D shape that accomplished the same thing, and uploaded his shape's specifications to Thingiverse, a repository for 3D designs.

Then I came along and missed the fact that there was a challenge underway, and erroneously credited Artur Tchoukanov with creating the shape. Schwanitz sent me some emails asking for correction, but they arrived while I was away from the Internet at a conference, so it was a few hours until I updated. In that time, Schwanitz sent Thingiverse a DMCA notice -- essentially, a threat to name Thinigverse as a party in any copyright lawsuit against Tchoukanov unless Thingiverse took the shape down immediately.

Whereupon Schwanitz became the inventor of something much more substantial than a 3D Penrose Triangle -- he became the inventor of copyright threats over open 3D repositories. A weekend's worth of acrimony followed -- with lots of speculation about the copyrightability of Schwanitz's design and questions about whether Tchoukanov was guilty of violating any copyright that vested in the design, and further questions about the ethics of copying designs and the ethics of sending copyright threats to Thingiverse.

Here's where I net out on it: the 2D Penrose Triangle is not a copyrightable image. It is in the public domain. It is possible to make new copyrighted works based on the public domain (see, for example West Side Story, a new copyrighted work derived from the public domain Romeo and Juliet). The copyrightability of such a work hinges on whether it is sufficiently creative.

I think Schwanitz's design is indeed creative, and probably attracts a new copyright. However, I'm not convinced that Tchoukanov's work violates that copyright, since it's not a "copy" of the Schwanitz design (that is, it wasn't created by copying the file), but rather, an interpretation of the underlying public domain work inspired by Schwanitz's design.

I further think that Schwanitz was wrong not to expect people to present solutions to his challenge in the form of 3D files. After all, if you pose a public mathematical riddle, you should expect the challengers to upload their equations in response. "Show your work" is a feature of all good scholarly pursuits.

But I also think I'm to blame for not parsing the post I reported on more closely -- I was in a hurry, and the context of the post on i.materialise was unclear, so I misattributed the work. This was compounded by one of those rare moments when I wasn't online, which is just sod's law in action.

Finally, I think that Schwanitz has done the right thing in dropping his complaint against Thingiverse and Tchoukanov's work -- not least because, as Thingiverse's Chylld has demonstrated, it's trivial to create new "impossible triangle" designs that are strictly based on the public domain image that inspired Schwanitz, which means that Schwanitz will never be the sole supplier of this particular 3D optical illusion (this is the other side of the public domain bargain: you may use it for free, but so many your competitors -- hence Disney has to contend with innumerable other versions of Rapunzel that compete with their Tangled).

All in all: fun times. Expect them to get weirder. I mean, aggrieved optical illusion creators don't have anything like the political and legislative clout of other potential 3D printing complexifiers. Imagine what happens when some magistrate in Alabama decides that Thingiverse is liable for hosting 3D models of sex toys (illegal in AL) and issues a bench warrant for Bre Pettis's arrest. Or when someone from Shapeways shows up at CES in Vegas, only to discover that the state Drug Enforcement Agency has issued a warrant on the basis of a bong design available at Shapeways, violating the state's strict anti-drug-paraphenalia laws. Or someone from i.materialise gets an EU extradition request from Germany because someone's printed a detailed, historically accurate toy soldier with a swastika armband, violating Germany's strict laws against Nazi paraphernalia.

And just wait until someone creates a printer that can reproduce patented pharmaceutical compounds or Monsanto's patented life-forms! Now there are a couple of villains with a lot of resources to throw at making the whole Internet's life miserable in order to squeeze an extra 0.05% into the quarter's bottom line.

I guess it has been taken as a challenge because of non-disclosed and perfectly working trick (great work). Maybe the price of $70 on Shapeways was perceived as high by the (rather technical?) potential buyer ?

– I’m wondering what would have happened if the price of this object was $9.99 ?
– I’m also wondering what would have happened if the author had shared the trick from the beginning ?

Product spares will be a big issue. In the UK we have a very strong legal tradition of protecting the right of consumers to buy (or make!) third-party spares, but this is subject to constraints – see the Dyson case on appearance-matching accessories for vacuum cleaners. As for the question of when something stops being a sculpture (protected by copyright in the UK) and instead becomes a mere 3D product (protected at most by limited design rights), we are about to go into Round 3 of Lucasfilm v Ainsworth, as the UK Supreme Court decides what category Imperial Stormtrooper helmets fall into.

Seems like the other point here is that somebody couldn’t wait more than “a few hours” to get an answer to an email. I think that at least 24 hours should be the minimal expectation for a response to an email, unless there is some prior understanding about the need for a quick turnaround.

It’s hard for me to workout what, if any, copyright would have been infringed, most likely Penrose’s !

If the STL or other 3-d file was not a direct copy of the original but an independent re-creation then it does not infringe – the resulting 3-d object has very little copyright protection except possibly as a sculpture and the fact that it was based on an original that was was not intended to be a 3-d design would suggest that any copyright would vest in that in much the same way that if you copy one of Disney’s figures in 3-d the copyright rest with them not you.

Trying to grant copyright to 3-d object would be the start of a slippery slope with very unfortunate unintended consequences.

Copyright is generated by simply creating an applicable object, it does not have to be applied for. So if it applied to 3-d objects then every man made object would be covered by copyright and it would be next to impossible to ever take a photo or show anything on television without breaking copyright law!

I’ve a longer version of this reply on the Shapeway’s blog linked above, to save repeating it all have a look there.